Report on the Review of the Mental Health (Scotland) Act 1984

Section 8 OTHER MATTERS

Chapter 34

REGULATIONS, RESEARCH AND OTHER ISSUES

Regulations

1. There are relatively few regulations or statutory instruments made under the 1984 Act. The most significant are probably the regulations setting out treatments which are specified under part X of the Act as requiring additional protection¹, and the Act of Sederunt setting out certain rules for mental health hearings in the sheriff court². As we point out in Chapter 10, the specified treatments have not been reviewed since the Act was introduced. In relation to the Act of Sederunt, the Mental Welfare Commission advised us of its concern that its provisions, for example as to when a curator ad litem should be appointed, are often not well understood or applied.

2. Should a new Act be introduced, no doubt a new series of regulations will require to be introduced. We hope that the Scottish Parliament will ensure that these are openly debated. It will also be important that the Scottish Executive ensure that professionals, service users and carers are aware of the regulations, particularly through training, and by including appropriate references in the Code of Practice.

Statistics and research

3. We were concerned by the lack of adequate statistical information concerning the operation of the Act. The Mental Welfare Commission holds some information, as a by-product of its statutory responsibility to be notified of various matters, and in recent years it has developed its information technology to make better use of this information. We recommend in Chapter 23 that the Commission should be under a duty to collect and publish statistical information, which may help to ensure that this role is carried out systematically.

4. However, there are significant gaps in the information available to the Commission. It does not hear, for example, of applications for detention which are initiated, but not proceeded with. Nor is it able to guarantee that those who are legally required to submit information always do so, and it has expressed concern that the Act is not being fully complied with in relation to the submission of statutory forms.

5. There is little or no monitoring of how the Act affects particular groups, for example, minority ethnic communities.

6. There is also a dearth of proper research. In order to gather even basic information for the Committee about how the procedures for detention operated in the sheriff courts, it was necessary to commission research- which appears to be the only systematic study of the subject which has taken place in the lifetime of the Act. (See Annex 7)

7. The authors of the literature review which we commissioned (see Annex 8) commented:

'This review exercise has highlighted the lack of research or audit on the use of mental health law in Scotland either in terms of process or outcomes...The lack of research and data is unfortunate since the size of Scotland means it is well placed to carry out good national studies on total populations of patients affected by mental health law. Good monitoring of the new law would seem particularly important since in a number of the studies ...expectations were not met in reality.'

8. The Accounts Commission report 'A Shared Approach' pointed to a lack of valid and reliable information on the cost, quality and efficiency of services, the extent to which they meet identified need, and the outcomes achieved for individuals. The report recommended that the various initiatives to provide information on mental health services be co-ordinated.

9. The introduction of a new Act would be an ideal opportunity to look at the present arrangements for the collection of statistics and to begin a co-ordinated programme of information collection, and targeted research, which should help to show how the new legislation was working and whether its aims were being met.

Forms

10. The procedures for compulsory care under the 1984 Act involve a considerable number of forms. The content of many of these forms is set out in regulations³. These forms are used to provide important information such as the basis of the medical recommendations for detention under s18 of the Act. Other forms are non-statutory, such as the form which records the grounds for an emergency admission to hospital under s24.

11. These forms are important because they are not simply records of decisions, but in many cases are the basis for a decision. The research into the operation of detention in the sheriff courts showed that many s18 applications are determined without hearing oral evidence. The evidence on which the decision of the court is taken is, in effect, the forms submitted to the court.

12. That being so, the content and design of the forms is of considerable importance. For example, the form which sets out the medical recommendation for admission to hospital contains six closely spaced lines, taking up just over an inch of the form, to set out the basis of the patient's mental disorder and how it meets the criteria for detention. There are seven lines, taking up one and a half inches, to set out the basis for the opinion that it is necessary for the patient to be treated in hospital and that treatment cannot be provided unless the patient is detained. The form indicates that this space should also be used to indicate whether other methods of care and treatment are available and if so why they are not appropriate, and why informal admission is not appropriate.

13. Given the design of the form, it is not surprising that the research found that many medical recommendations are extremely terse, and in some cases, regrettably, illegible.

14. Other forms, for example Form 10, under which an independent doctor certifies under Part X of the Act that treatment should be given to a non-consenting detained patient, do no more than set out the statutory formula for the decision, and a brief description of the treatment in question, without any space to record any factors which may be material to the decision.

15. Our proposals for compulsory procedures involve a more detailed consideration of the circumstances of the individual patient. That being so, it will be important for thought to be given to the appropriate design of the new forms that will be necessary.

16. Such forms are also, potentially, an important source of statistical information, by which practice can be audited and improved. For this information to be collected to best advantage, it will be important that the forms are designed to take account of the approach to information gathering which we recommend in paragraph 9 above.

17. In saying this, we are conscious of the pleas of professionals, that time spent filling forms is time not spent helping clients. Nevertheless, proper recording of information is the cornerstone of good medical and social work practice. It should therefore be possible to translate this good practice into compliance with the statutory requirements, without adding unduly to the workload of professionals. The developing use of information technology may assist in integrating the recording of information for the purposes of delivery of care and compliance with statutory requirements.

18. The Criminal Procedure (Scotland) Act 1995, unlike the 1984 Act, does not prescribe statutory forms to support procedures under the Act, for example, recommendations for a hospital order. This means that professionals who only occasionally give such reports have no guidance as to their content. We heard evidence that, as a consequence, reports do not always provide all the appropriate information, and might even omit aspects of the relevant statutory criteria for the recommendation which is being made.

19. We believe that this is an unfortunate omission, and that there should be statutory forms for mental health disposals by the criminal courts, as well as for civil measures of compulsion. On the other hand, we would not want to see a largely pre-printed report, where a doctor or mental health officer simply filled in blanks and signed the form. A reasonable compromise would be standard forms, which included explanatory notes and a column for text.

Training

20. We make recommendations throughout this Report which reflect the importance we attach to the training of health and social care professionals, and other groups such as the police, particularly in the law relating to mental health.

21. The introduction of a new Act will require a comprehensive programme of training for all those who will have to operate its provisions. This is a considerable challenge, but may also present an opportunity to improve the awareness of mental health law.

22. The responsibility for ensuring that there is adequate training in place will be shared amongst employers and professional bodies, but the Scottish Executive will have a key role. It should both set clear expectations, particularly of the NHS and local authorities, and help to co-ordinate activities, to avoid duplication of effort and promote inter-disciplinary working. It may be appropriate for some of this work to be contracted out to a suitable organisation or consortium. The precise arrangements are not a matter for us, but we feel it is important to highlight the need for early consideration to be given to a co-ordinated strategy for training in the new Act.

The information contained on this WWW site is Crown Copyright but may be reproduced without formal permission or charge for personal or in-house use. © 1997-2001. For general enquiries about this section email mentalhealthlawmailbox@scotland.gsi.gov.uk